The Liberty Act: What Right to Privacy?

Earlier this month, the House Judiciary Committee approved the USA Liberty Act. If you only read the title, you might assume that this was a positive thing. Unfortunately, the title is more of a bad joke than an honest representation.

To understand the Liberty Act, a little background understanding is required. Generally speaking, domestic surveillance in the US requires probable cause and a warrant, meaning that a certain amount of due process is required before various law enforcement agencies can monitor individuals. For foreign intelligence, a separate set of rules apply – the Foreign Intelligence Surveillance Act (FISA) which was passed in 1978. However, this act still requires a warrant for surveillance of people inside the US – it must be shown that they are connected to a foreign power or threat.

FISA was amended in 2008, and with this amendment came section 702. This allows the intelligence community to intercept communications of “non-US persons” located outside the US without a warrant. US citizens cannot be targeted, but this doesn’t protect them entirely.

While persons in the US can’t be targeted, their communication can be picked up incidentally during the surveillance of an overseas target. This communication is stored, and can legally be searched by organizations such as the NSA, FBI, and others – without a warrant. These are known as “backdoor searches.” Many would argue that these searches are a direct violation of the Fourth Amendment.

Section 702 is set to expire in December this year, and therefore requires reauthorization. This is where the Liberty Act enters the scene. The House Judiciary Committee set out to continue the foreign intelligence gathering enabled under section 702, whilst protecting privacy. Unfortunately, it falls short in a number of ways.

Firstly, the Liberty Act completely fails to address the incidental collection of communication by US citizens, which will still be stored. The act does require that national security agencies have a “legitimate national security purpose” for querying US persons, but not a warrant. It allows searching of metadata with only supervisory approval, again no warrant (this metadata contains information such as when communications were sent, and who they were sent to). It is also worth noting that previous legislation required agents to provide evidence that the metadata was relevant, but this precaution is not in the Liberty Act.

You might easily assume that this is a well-intentioned bill, which addresses some privacy elements but is understandably imperfect. Certain loopholes have been left open simply because there is no way to address them. Again, this is not the case. Two representatives in the committee – Ted Poe (R) and Zoe Logfren (D) – suggested that a warrant be required for all queries of information gathered under Section 702. This was argued against by John Conyers (D) and Chairman Bob Goodlatte (R), on the basis that it would reduce the bill’s chance of passage, and the act was left unchanged. We see then that the committee were not mistaken, nor did they fall short of their goals. They deliberately left room for intelligence agencies to access the private communications of US citizens without a warrant or probable cause.

The Fourth Amendment states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

It would clearly be a stretch to claim that unwarranted searches of both metadata and the actual content of various communications do not violate this. While the House Judiciary Committee had the perfect opportunity to address this and require warrants for all searches of US persons’ private communication, they chose not to.

Countless liberties have been taken away by governments across the world in the name of foreign intelligence and counterterrorism. The lack of interest from the general public in their own right to privacy, and the almost complete silence from large media outlets should be worrying to those who defend personal freedom. When considering the growth in government surveillance over the last 15 or so years, Benjamin Franklin’s words hit far too close to home:

“Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety”.

If I were to hack your personal communication, I would face severe legal repercussions. If a government employee were to do the same, they would most likely get a promotion.

* Ryan Green works in media production in Auckland, New Zealand, and is strongly pro-liberty and personal freedom. You can follow him on Twitter @RyanGreen_NZ

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